POFA applicability when parked in Disabled space

Quentin

@OP (or KeithP)


You need to see if you can PM KeithP and ask him to edit #2 (quote)

KeithP

Post #2 edited as suggested.

Gooman

Coupon-mad wrote: »

Why not appeal online, all you needed was to Google 'APCOA Appeal' to find their appeal page.

I also found that, but two problems - 1) the PCN only mentions postal appeals so they could technically say that an online appeal was invalid, and 2) the appeal page only allows me to pay, not to appeal!

Coupon-mad

Oh, so where it says:

View the evidence, pay or challenge my Parking Charge Notice (PCN/ECN)

they actually do not allow you to 'challenge' it there?!

If not, then post it but keep proof of posting (free certificate/receipt from a PO Counter).

Gooman

Received a letter with a POPLA code denying my appeal yesterday - day 57.

They've managed to make a complete pig's ear of it, as:
1) The PCN number is wrong - it's not my driver's PCN (I checked and I did state it correctly on my appeal letter)
2) As a result, the date is not the date of the driver's attendance at the hospital
3) The stated car reg no is not my car, and the included photos are not of my car

Also, they've not addressed the specific issue of the unreadability of the signage (for which I provided photographic evidence).

The letter does not identify itself as an NTK and seems to fail the tests of a valid NTK under Schedule 4 Para 8 of POFA since:
a) the vehicle identified and the date are incorrect and don't match the PCN my driver found on the vehicle
b) makes no statement that the driver is liable for the penalty charge
e) makes no statement regarding knowledge of the name of the driver and their address, nor offering for me as keeper to pass it on to the driver - it simply urges me to pay as keeper
i) includes a date on the letter of the 14th June but does not specifically mention the sending date (it wasn't received until 20th June)

Any suggestions on which POPLA letter to base my POPLA appeal on would be most welcome!

Quentin

Popla appeals are covered in detail in #3 of the FAQ with links to near templates to adapt to your circs and use

Post your draft for comments before sending it

Coupon-mad

A rejection letter with POPLA code is NEVER a Notice to Keeper.

And we already told you APCOA don't use the POFA anyway so there is no point poring over any letter from them and thinking you have to compare it to the POFA.

This is a cinch to win for a rk at POPLA, just copy any other APCOA POPLA appeal you care to find from this year and remove the bits about byelaws (common to POPLA appeals in APCOA railways or airport car parks). Easy as taking candy from a baby, APCOA will not contest it.

Report this data protection breach to APCOA's data protection officer, and copy in the BPA and say you will take this complaint to the ICO, shoddy data processes so soon after the GDPR!

Received a letter with a POPLA code denying my appeal yesterday - day 57.

They've managed to make a complete pig's ear of it, as:
1) The PCN number is wrong - it's not my driver's PCN (I checked and I did state it correctly on my appeal letter)
2) As a result, the date is not the date of the driver's attendance at the hospital
3) The stated car reg no is not my car, and the included photos are not of my car

Gooman

Excellent, thanks for the pointers guys. I'll post my draft here for comments as recommended.

Gooman

OK, here's my draft (dates, PCN #s and car reg #s redacted):

As the registered keeper, this is my appeal about a Parking Charge Notice ####PCN1#### issued by APCOA for an alleged breach of the company's terms and condition in the Luton & Dunstable Hospital Car Park on the XXth Xxxxxxxx 2018 for vehicle registration number ####REG1####.

For the avoidance of doubt, the driver's identity has not been provided and this appeal remains purely from the registered keeper.

The alleged breach of the company's terms and condition is "Parking in a disabled bay without displaying a valid blue badge - 5".

Summary of appeal:
1. No compliant Notice to Keeper was ever served - no Keeper Liability can apply.
2. Appellant not being the individual liable.
3. Non-compliant signage.
4. Lack of standing / authority from landowner.
5. Disabled parking areas are poorly marked or ambiguously marked.

1) A compliant Notice to Keeper was never served - no Keeper Liability can apply.

Firstly, I received a letter on XX Xnnnn 2018 from APCOA dated XXth Xxxxxx 2018 regarding PCN ####PCN2####, for vehicle registration number ####REG2####. You will note that the PCN quoted is not the PCN left on my vehicle (####PCN1####), and does not relate to my vehicle. I do not own, nor am I the keeper of vehicle ####REG2####. As a result, that letter could not possibly qualify as a relevant Notice to Keeper.

Secondly, should APCOA claim that their letter dated XXth Xxxxxxx does in fact constitute a Notice to Keeper, APCOA Parking (UK) Ltd has not fulfilled the 'second condition' for keeper liability as defined in Schedule 4 and as a result, they have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant. There is no discretion on this matter. If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeper liability simply does not apply.

The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:
''Right to claim unpaid parking charges from keeper of vehicle:
4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if
(a) the conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;
*Conditions that must be met for purposes of paragraph 4:
6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor)!!!8212; (a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8. This is re-iterated further 'If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.'

Third and finally, the NTK must have been delivered to the registered keeper's address within the 'relevant period' which is highlighted as a total of 56 days beginning with the day after that on which any notice to driver was given. The letter arrived on day 57.

This operator has not only failed to serve any valid NTK, not only have they chosen to flout the strict requirements set out in PoFA 2012, but they have consequently failed to meet the second condition for keeper liability. Clearly, I cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly given.

2) Appellant not being the individual liable
APCOA has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge (ref POPLA case Carly Law 6061796103). In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. Any person(s), with the consent of the registered keeper, may drive a vehicle as long as the driver is insured.

Where a charge is aimed only at a driver then, of course, no other party can be told to pay. I am the appellant throughout (as I am entitled to be and as the Registered Keeper), and as there has been no admission regarding who was driving (and no evidence produced), it has been held by POPLA on numerous occasions that a parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if APCOA is not using or complying with Schedule 4. This applies regardless of when the first appeal was made because the fact remains I am only the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with APCOA, because they cannot use the POFA in this case, to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with the POFA 2012 was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

Understanding keeper liability
"There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no 'reasonable presumption' in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. If POFA 2012 Schedule 4 is not complied with then keeper liability does not generally pass."

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
"I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal."

3) Non-compliant signage
APCOA signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself. Entrance signs which are mandatory under the code are not visible and do not follow paragraph 18.2 of the code.

There was neither contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case. For a contract to be formed, one of the many considerations is that there must be adequate signage on entering the car park, and furthermore a Notice is not imported into the contract unless brought home "so prominently that the party 'must' have known of it" and agreed terms. I contend that this is not the case, and question the fact that the driver saw any sign specifying the amount of the 'fine' that would be due, and so there was no consideration or acceptance and no contract agreed between the parties.

In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only.

In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

[The 'Beavis case' sign and the entrance sign under dispute in this case are shown at the end of this letter]

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge, which is hidden in small print. Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:
''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operator!!!8217;s signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put APCOA to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:
''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2" letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3" or even larger.''
...and the same chart is reproduced here:
''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.
''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''
So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':
(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case.

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

So, for this appeal, I put APCOA to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require APCOA to show how the signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this. It is significant that the pictures supplied with their letter had no site entrance photos.

4) Lack of standing / authority from landowner
Section 7 of the British Parking Association (BPA) Code of Practice requires parking operators to have the written authority from the landowner to operate on the land. Section 7.1 states:

"If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges".

Section 7.3 states: "The written authorisation must also set out:
a. the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined!
b. any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
c. any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement!
d. who has the responsibility for putting up and maintaining signs
e. the definition of the services provided by each party to the agreement.''

I do not believe that APCOA's mere site agreement as a contractor with Luton & Dunstable Hospital gives the parking firm any rights to sue in their own name. This is insufficient to comply with the BPA Code of Practice and not enough to hold me liable in law to pay. APCOA have no title in this land and therefore have no standing to enforce 'parking charges' or penalties of any description in any court. No evidence has been supplied lawfully showing that APCOA are entitled to pursue these charges in their own right.

I require APCOA to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this, it will not be sufficient for APCOA merely to supply a site agreement or witness statement since these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. To comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority. I put APCOA to strict proof of compliance with all the above requirements

5) Disabled parking areas are poorly marked or ambiguously marked.
There is no clear, unambiguous signage for disabled bays. A sign provided within the car park (not at the entrance) says that the "Upper Level" is for disabled parking. This term would more normally be used to describe levels in a multi-storey car park, but in fact seems designed to designate an area within the car park that is reached via a small ramp. It is far from clear that this ramped area is the "Upper Level".

Coupon-mad

Looks like a winner to me! Submit it as a PDF under 'other'.